The leak of the Trans Pacific Partnership intellectual property chapter confirms that the many concerns about the agreement were well-founded. My earlier posts highlighted Canada’s opposition to many U.S. proposals and U.S. demands for Internet provider liability that could lead to subscriber termination, content blocking, and ISP monitoring. This post focuses on some of the anti-counterfeiting requirements in the TPP. The anti-counterfeiting issue is particularly relevant from a Canadian perspective because the government has proposed significant new anti-counterfeiting measures in Bill C-8, which is currently at second reading in the House of Commons and being studied by the Industry Committee. If the U.S. border measures demands are included in the TPP, Bill C-8 would be wholly inadequate to meet Canada’s new treaty obligations.
For example, the TPP would require customs officials have ex officio power (ie. power without court oversight or even a formal complaint from a rights holder) to seize in-transit shipments of suspected counterfeit trademark or copyright goods. Bill C-8 currently excludes in-transit shipments. Moreover, the U.S. wants to extend counterfeit trademark goods to goods that are “confusingly similar”, a demand currently opposed by Canada and also not contained in the bill.
The TPP would also create a framework where customs officials could notify rights holders of seized goods, even where the rights holder has not asked for assistance. This is inconsistent with Bill C-8, which is premised on a system of a prior request from rights holders. Beyond border measures, the TPP would require countries to establish statutory damages for trademark infringement. Canada does not currently have this form of damages, though there has been lobbying by some groups to include trademark statutory damages in Bill C-8. During my recent committee appearance on C-8, I argued that the bill should be delayed until Canadian obligations become clearer. The leak of the TPP text confirms that the government may be forced into further reforms if the U.S. succeeds with its anti-counterfeiting demands.